#### Wilvert *et al. versus*Sunbury Borough.

1. The act of June 16th, 1836, section 3, etc. (Mechanics’ Liens), does not require that the particulars of the claim should be recorded at large on the “ Mechanics’ Lien Docketthe bill of particulars annexed to the statement filed is as much a part of it as if incorporated in it.

2. A municipal claim stated that it was for “making, grading, curbing, and guttering pavement,” etc., which the council had authority to have done; there was no guttering or curbing, it not being shown that the pavement was defective for want of curbing and guttering. *Held,*That the lien was good for making and grading the pavement.

3. An act and an ordinance under it authorized the borough council to require paving, etc., to be done by lot-owners, but did not provide for notice requiring them to do the work. It was proper that such notice should be given authorizing the improvement.

4. The act authorized the council to direct the paving, etc., of sidewalks by owners of lots, apd if it was not done, the council might do it and collect the cost from the owner, as claims are recoverable under the mechanics’ lien law, and particulars of such labor, etc., shall be set forth in a statement to be filed in thirty days. *Held,*Not necessary that the statement should set forth that labor, etc., had been furnished on the credit of the lot.

5. The act authorized the borough to collect the cost of the work, etc., with

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      *“*20 per cent, advance upon the cost.” *Held,*That the 20 per cent, rvas the subject of the lien,

6. It is an established rule of practice in the Supreme Court not to reverse on account of the rejection or receiving of written evidence, unless the paper in question or a copy be furnished.

7. Aiken *v.*Stewart, 13 P. P. Smith, 33; Lothrop *v.*Wightman, 5 Wright, 297, cited.

January, 1871.

Before Thompson, O. J., Read, Agnew, and Williams, JJ., Sharswood, J., at Nisi Prius.

Error to the Court of Common Pleas of Northumberland County, of October Term, 1870, No. 8.

This was a scire facias sur municipal claim, issued February 3d, 1868, by the burgesses, etc., of Sunbury against Elizabeth Wilvert, wife of Michael Wilvert, and Michael Wilvert, owner or reputed owner and occupier.

The borough of Suubury was incorporated on the 24th of March, 1797, by act of Assembly of that date. On the 2d of March, 1859, a supplement to the act of incorporation was passed. It enacted, “ That the burgess, or assistant burgess, in town council assembled,” should have power to direct “the grading, curbing, paving and guttering, etc., of the side or footwalks, by the owner or owners of lots of ground respectively fronting on any of the public streets, .... in accordance with such regulations as may be prescribed by the town council, and *to*cause the same to be done on failure of the owners thereof within the term prescribed by ordinance, and to collect the cost of the work and material, with 20 per cent, thereon, from said owners, as claims are by law recoverable under the provisions of the law relative to mechanics-’ liens, and the particulars of such labor and materials, 4he name and names of the actual or reputed owners, as also who occupied the premises for the time being, shall be set forth in a statement to be filed within thirty days after such work shall have been finished.”

By ordinance of June 5th, 1859, it was directed the foot-walks should be graded, curbed, and paved by the owners before August 1st, 1866; on failure of the owners to pave, the chief burgess was to cause the pavement to be laid.

On the 9th of December, 1887, the borough filed in the prothonotary’s office a claim, entitled “ The'Burgess, etc., of Sunbury *v.*Elizabeth Wilvert, wife of Michael Wilvert, and Michael Wilvert, owner or reputed owner and occupier.” Setting out that the defendant, being the owner or reputed owner and occupier of a certain lot, describing it, did neglect, refuse, and fail to cause the “grading, curbing, paving, and guttering” of the sidewTalk in front of said lot within the time prescribed by the ordinance, whereupon the *59chief burgess “ did cause a pavement, side or footwalk, grading and curbing to be made in accordance with the act, .... aud under the direction and control of the borough regulators,” and the plaintiffs filed their claim for $97.64 against a certain lot, etc., describing it; that sum being for “work and labor done in grading and hauling earth for grading and in laying pavement and for materials, within thirty days last past, etc., for and about the making, grading, curbing, and guttering of pavement, etc.” And the plaintiffs claimed to have a lien on said lot, etc., for the sum aforesaid, and they “hereto annex a bill'of particulars of the amount of their claim, showing the nature and kind of work done, etc., the kind and amount of materials, and the time and cost;” the dates were from October 24th to 28th, and November 15th, 1867. The bill of particulars contained a number of distinct items of materials, labor, etc., and amounted to $81.37, to which was added 20 per cent., making the'whole $97.64.

The defendants, August 7th, 1868, pleaded “ nil debet,” and that the plaintiffs did not inform defendant of the passage of the ordinance; they had no notice before it was done that they were required to do it; that they had no notice of any height, grade, width, slope, or form of the pavement and gutter having been established the work, and materials charged were not furnished for the erection of the pavement, etc.; the bill of particulars was not filed in the prothonotary’s office within thirty days after the work was finished.

On the 8th of November, 1869, they filed an additional plea, that the defendants were not the owners, or reputed owners, of the lot of ground mentioned in.the claim when it was filed, nor when the materials were furnished, but William E. May was the owner, and he had no notice of the ordinance requiring owners to lay pavements before the day therein named.

The case was tried before Jqrdan, P. J.,March 22d, 1870.

The plaintiff" read the act of Assembly, and gave in evidence the borough ordinance ; also, the Sunbury *Gazette*of June 6th, 1866, showing that the ordinance of the town council was published. They gave evidence also that the title to the lot was in Mrs. Wilvert, from June 28th, 1866, till March, 1869, when it was conveyed by Wilvert and wife to Emanuel Wilvert.

A. N. Brice, who was a member of the town council in 1866 and 1867, testified that there was a “ borough regulator” appointed, who established the grades of pavements and gutters. Arms, the regulator, did. the first grading, be*60tween April and June, 1866 ; E. T. Bright, in 1866 and 1867, was chief burgess; he directed the committee, who worked under his direction as to the pavements; the pavement in this case was in accordance with the grade established. Wilvert and wife occupied the property when the pavement was laid, and occupied it at the time of trial. Before the pavement was made, Mr. and Mrs. Wilvert had verbal notice two or three times; the committee stated to them that if the pavement was not commenced immediately the committee would make it according to the requirements of the chief burgess ; time was given them till September 1st, 1867; they were given till the last of September ; there was no material on the ground when the committee commenced. Wilvert and wife told witness they wanted to lay the pavement themselves, but would not till they got ready; witness told Hile to go on with the work. Wilvert said he ■would drive any one off who would attempt to lay the pavement. The committee gave them notice in August, and commenced about October 1st; the last stone was laid between 1st and 15th of November; the lien was filed December 9th, 1867 ; there was no curbing put in at this pavement; guttering was not done by the council.

Hile testified that he laid the pavepient in the forepart of November.

C. Seasholtz testified that his firm finished filling at the pavement; the last delivery was November 18th, 1867.

The plaintiffs gave in evidence the ordinance of council, July 5th, 1859, fixing the width of the pavement where there was no building at 5 feet, and proved that this pavement was 5 feet.

The defendants gave'in evidence the sheriff’s sale of the lot, under a judgment against Michael Wilvert, and sheriff s deed to W. E. May, November 12th, 1866, and conveyance, March 8th, 1867, from May to Emanuel Wilvert.

Michael Wilvert testified in contradiction of Brice; among other things, that Brice had given him no notice of any kind, only asked him when he was going to lay the pavement. May néver lived in this house.

P. Hile testified that the pavement required backing up.

Defendants gave evidence also that the work was defectively done, and that the .prices were too high.

The defendants offered in evidence ordinance of council of June 9th, 1800, to show that the width of this pavement was fixed at 8 feet 6 inches, and that it was not laid as required by the ordinances.

Objected to by plaintiff, because there was no evidence of such ordinance having been passed ; that the council had no *61authority in 1800 to fix the width of pavements, that power being vested exclusively in the regulator; the regulator having established the grade and width of the pavement, defendants cannot object to the pavement on account of width ; that to have laid a pavement 8 feet 6 inches wide, where there were no buildings, would have been uselessly expensive, and defendants cannot object because it was not so laid, and none but the borough officers could object in such case.

The offer was rejected by the court, and a bill of exceptions was sealed.

The defendant proved by the chief burgess that a pamphlet, shown him, contained this ordinance of June 9th, 1800, and it was similar to one used in the council.

The offer was renewed, objected to, rejected, and a bill of exceptions sealed.

The points of the defendants, with their answers, were as follows:

1. The plaintiffs’ claim as recorded in the mechanics’ lien docket, does not sufficiently set out, in the body of the mechanics’ lien, to charge the building sought to be charged ; nor does it establish what portion of his claim was for work and labor done, or material furnished, nor the quantity or quality of materials used, without the aid of the bill of particulars or statement thereto attached ; that the bill of particulars, or statement, or demand, thereto annexed, must be taken as constituting what by the act of Assembly is called the plaintiffs *“claim,”*which the prothonotary omitted to spread on the docket of the court, and, therefore, cannot be regarded as a part of the.mechanics’ lien, nor used for the purpose of establishing the plaintiffs’ claim.

Answer. The court are of opinion it is sufficient.

2. The act of Assembly, approved the 2d day of March, A.D., 1859, and the ordinance passed on the 5th day of June, 1866, by the town council, direct that the side or footwalks of certain streets or highways, in said ordinance named, should be graded, curbed, 'paved, and guttered, by the owner or owners of lots respectively fronting on said, streets, on or before a certain day therein named, under the superintendence of the borough regulators, that the width of the pavements should be as before that time established by borough ordinance, and that upon failure of owners to cause the same to be done, then the chief burgess was authorized, directed, and empowered to cause the same to be done, under the direction and control of the borough regulators ;■ but the plaintiffs by their own evidence showed, that the chief burgess did not perform this duty, but the town council author*62ized A. N. Brice to cause the paving, etc., to be done, and that in doing so they transcended their authority.

Answer. If the work was done by direction of the chief burgess, or by direction of the town council with his consent, it is sufficient.

3. The claim as filed, is for work and labor done, and materials furnished for and about the making, grading, curbing, and guttering of the pavement, side or footwalk, yet from the plaintiffs’ own showing the curbing and guttering was not done at all.

Answer. Whether it was made, graded, curbed, and guttered, is a fact for the jury ; but if the pavement only was made, the plaintiffs can recover for that.

4. The owner of the property had no such’notice as contemplated by law, or of the ordinance passed, requiring property-owners to grade, curb, pave, and gutter, on or before a certain day therein named.

Answer. Notice as required by the act is necessary to charge the owner; whether such notice was given and when is referred to the jury.

5. The lien as filed does not allege that the materials or work and labor done was furnished upon the credit of the property, or lot of ground described in said lien, and sought to be charged by it.

Answer. The allegations in the lien are sufficient to charge the owner. '

6. The plaintiffs’ right to recover depends on no principle of moral right but on positive enactments, beyond which it cannot be extended; that any deviation by the plaintiffs from the act of Assembly and ordinance passed in pursuance thereof is a bar to his recovery.

Answer. Admitting the correctness of this propositioh, there is not, in the opinion of the court, such deviation from the act of Assembly,-nor ordinance passed, as prevents the plaintiff from recovering.

7. If the plaintiff is entitled to recover, he cannot charge twenty per cent, additional as a penalty for not paving, and the penalty thus charged is not the subject of a mechanics’ lien.

Answer. .We think the twenty per cent, is the subject of a lien in this case.

The verdict was for the plaintiffs for $85.66.

The defendants sued out a writ of error.

They assigned for error:

1-7. The answers of the court to their points.

8. Rejecting their offers of evidence.

*63S'. Malick, *J. B.*Boyer, and *S. P. Wolverton,*for plaintiffs in error.

The claim does not specify the amount and different kinds of work done, nor the time when the materials were furnished or the work done, without the aid of the bill of particulars which the prothonotary omitted to record or spread on the docket kept for that purpose: Act of June, 1836, Sect. 3, Pamph. L., 697 ; 2 Br. Purd., 1025, pl. 3, Sect. 12, 1032, pl. 40 ; Noll *v.*Swineford, 6 Barr, 187; Singerly *v.*Cawley, 2 Casey 248 ; Knabb’s Appeal, 10 Barr, 187.

According to the ordinance of June 5th, 1866, on the failure of the owners of lots to grade, etc., the chief burgess was to cause the same to be done. This duty should have been performed by the chief burgess and not by Brice, a member of council. The duty was not ministerial, but required the exercise of discretion, and could not be deputed : Armstrong *v.*Novinger, 8 Barr, 412; McMasters *v.*Carothers, 1 Id., 324; Railroad *v.*Heister, 8 Id., 452.

The claim presented an entire contract for “ making, grading, curbing, and gutteringno “ curbing or guttering ” were done; omitting part of the contract would bar a recovery for any: Wade *v.*Haycock, 1 Casey, 382.

It should have been set forth in the claim that the work, etc., was furnished on the credit of the lot, and the bill of particulars must set forth separately the amount and kind, etc., so as to preclude what might be done for anything else: Barclay’s Appeal, 1 Harris, 495; Noll *v.*Swineford, *supra.*

The bill of particulars stating the twenty per cent., does not say it was for penalty; this is not adhering to the requirements of the law: Knabb’s Appeal, 10 Barr, 191; Armstrong *v.*Hallowell, 11 Casey, 485; Bolton *v.*Johns, 5 Barr, 145.

The twenty per cent, is not part pf the lien ; that was for work and labor: Yates *v.*Meadville, 6 P. F. Smith, 22.

*L. T. Rohrbach*and *W. M. Rockefeller,*for defendants in error.

The borough had the power to pave: Schenely *v.*Commonwealth, 12 Casey, 29.

Mr. Justice Williams

delivered the opinion of the court, October, 1871.

There are eight assignments of error in this case, which we shall consider in their order.

1st. There is no merit in the first assignment. The particulars of the labor and materials for which the lien is claimed, the names of the actual or reputed owners, as also of the occupiers of the premises sought to be charged, are set forth in the statement filed, and nothing more is required *64
      *by*the act. The bill of particulars annexed to the statement is as much a part of it as if it had been incorporated in the statement itself. The law does not require the prothonotary to copy the bill of particulars in the mechanics’ lien docket, and it is not the practice. Such a* rule, if not impracticable, would be a burdensome and unreasonable requirement.

2d. The point embraced in this assignment is founded on an entire misapprehension and misstatement of the facts. Upon the failure of the owner or owners of any lots fronting-on the street to do the work within the time prescribed by the ordinance, the chief burgess was authorized, directed, and empowered to cause said pavements, side or footwalks, grading or curbing, to be made and done under the direction and control of the borough regulators. And the street commissioners were directed and required to assist the chief burgess in the performance of his duties under the ordinance if required by him. The evidence, instead of showing, as stated in the point, “ that the chief burgess did not perform this duty, but the town couucil authorized A. N Brice to cause the paving, etc., to be done,” showed that A. N. Brice “was one of the town council appointed in 1866 on pavements and sidewalksthat the chief burgess directed the committee, and the committee worked under his direction; that “ the chief burgess attended to the crossing, and the committee, under his directions, to the pavements;” and that Brice “always conferred with Arms,” the borough regulator, before the committee “ laid the pavement.” The work was therefore done substantially as directed and required by the ordinance, and the town council did not, as alleged, transcend their authority.

3d. We discover no substantial error in the answer of the court to the third point. If it had been shown that the pavement was worthless or defective because the sidewalk was not curbed and guttered, then the borough might not be entitled to recover the cost and expense of grading and. laying the pavement. But if, owing to the manner in which the grading and paving were done, curbing and guttering were not necessary to the completion and usefulness of the pavement, why should not the borough be allowed to recover the cost and expense of the- pavement ? There is nothing in the provisions of the act or the justice of the case to prer vent it.

4th. Neither the act nor the ordinance under which the grading and paving in this case were done, make any provision for giving notice to the lot-owners requiring them to do the work, though it is but right and proper that notice *65should be given. In this case the evidence shows that the ordinance was published in the Sunbury *Gazette*of the 6th of June, 1866, and that personal notice to do the work was given to the defendants at two or three different times, and that the time for doing the work was extended, and they were allowed until the last of September to do the work. The court properly left it to the jury to say whether or not notice was given.

5th. The act does not require that the statement or claim filed should contain any allegation that the niaterials were furnished and the work done on the credit of the property or lot of ground described in the lien and sought to be charged by it.

6th. The correctness of the court’s answer to the sixth point is so self-evident that it needs no vindication or explanation.

7th. The act expressly authorizes the borough “ to collect the cost of the work and materials with twenty per cent, advance thereonand the twenty per cent, advance upon the cost of the work and materials is charged in the bill of particulars and made part of the claim or lien as filed; the court rightly instructed the jury that it is the subject, of a lien in this ease.

8th. The paper-books do not contain a copy of the ordinance referred to in this assignment, and therefore it must be disregarded. We have repeatedly said that it is an established rule of practice in this court not to reverse on account of the reception or rejection of written evidence, without being furnished either with the paper in question or a copy of it: Lothrop *v.*Wightman, 5 Wright, 297 ; Aiken *v.*Stewart, 13 P. F. Smith, 33 and the cases there cited, and others not yet reported.

We have now considered all the assignments, and as we discover no substantial error in the record the judgment must be affirmed.

Judgment affirmed.